Permission to intercede or sovereignty supreme?: the influence of R2P on non- forceful responses to atrocity crimes

Abstract

Is it acceptable in the 21st century to require the international community to do nothing when atrocity crimes are being committed? The international law principles of sovereignty and non-intervention, when taken at their highest, require States to stand idle and not intervene in another State regardless of what atrocities may be occurring there. This traditional legal view is being challenged by an emerging practice of States choosing to act, inspired by the concept of the responsibility to protect (‘R2P’). Drawing on R2P, this thesis introduces and develops an original conceptual tool – intercession – to capture and explain the significant change in State practice in recent years as to the increasing utilisation of measures less than force taken by the international community in response to the commission or anticipation of atrocity crimes occurring in other States. While a great deal of existing scholarship has focussed on the coercive aspects of R2P, equating R2P with the use of military force, this thesis builds upon a smaller body of scholarship which focuses on the non-forcible aspects of R2P. This thesis argues that its conceptual framework of intercession can explain this new State practice, which has led to an expansion in both the permissible measures and situations in which States can intervene, without using force, in response to atrocity crimes occurring in other States, and a simultaneous restraint on the formulation and imposition of those measures. In doing so, this thesis undertakes novel and important research. This thesis includes three case studies, which have been chosen to demonstrate intercession at work in different ways across diverse areas of international law. Through a detailed examination of recent State practice, each of the case studies demonstrates the accordion effect of intercession – an increase in permissible State responses to atrocity crimes occurring in other States, coupled with restraint exercised by States in the formulation and implementation of those responses. The first case study – sanctions – demonstrates that R2P now permits States to impose regional or unilateral sanctions (measures of intercession) in response to atrocity crimes that would previously have been impermissible, indicating an emerging change to the boundaries of the customary international law principle of non-intervention. This case study also demonstrates restraint on the part of regional organisations and States in formulating and imposing sanctions in such a way that they minimise impacts on the general population. The second case study – assistance to opposition groups – reveals an evolution in the customary norm of non-intervention, in that States can now intervene in conflicts earlier, and lawfully take more measures, to respond to atrocity crimes by assisting opposition groups. This case study also demonstrates self-restraint in the provision of expanded forms of assistance to opposition groups. The third case study – the Arms Trade Treaty – shows the influence of intercession under R2P on the development of treaty norms and the implementation of treaties. Intercession under R2P provides a conceptual solution to the dilemma of whether it is acceptable for the international community to do nothing by articulating when and how States may respond to atrocity crimes in other States. The close examination of State practice undertaken in this thesis reveals that R2P has served as the inspiration for a re-aligned conceptualisation of the limits of State responses to atrocity crimes, charting a way forward for the international community which is at once sensitive to State sovereignty but also responsive to humanitarian imperatives.